Abecasis, R (on the application of) v Luton Justices

Procedural rules governing applications for continued detention of suspected drug-trafficking cash should be applied according to their function and substance. Form C was not an originating process, and failure to prove its receipt did not invalidate a subsequent detention order where the court was asked to continue detention, the affected person received notice and participated, and no prejudice resulted.

A person commissioned by the Commissioners of Customs and Excise under the statutory definition of constable could make a forfeiture application. The application was not an abuse merely because Customs and Excise had been undecided on the previous day. The magistrates also retained discretion over costs.

Customs officers seized cash from the applicant at Luton Airport under section 42(1) of the Drug Trafficking Act 1994. The Luton justices subsequently ordered continued detention and later fixed a forfeiture hearing.

The applicant sought judicial review, arguing that the continued-detention order was a nullity because the justices had not received Form C under the Magistrates Courts (Detention and Forfeiture of Drug Trafficking Cash Rules) 1991; that a later detention order consequently failed; that the Customs officer lacked authority to apply for forfeiture; that the forfeiture application was made in bad faith; and that the justices had erred on costs.

Owen J dismissed the applications: [1999] EWHC Admin 613. The applicant appealed to the Court of Appeal.

1. Appeals dismissed. The Court of Appeal, in the judgment of May LJ agreed with by Chadwick and Kennedy LJJ, found no proper basis for challenging the decision below.
2. Form C under paragraph 7 of the Magistrates Courts (Detention and Forfeiture of Drug Trafficking Cash Rules) 1991 was a simple means of requesting continued detention and fixing a hearing. It was not an originating process whose unproved receipt irretrievably invalidated the proceedings.
3. The relevant question was whether the substance of the procedural requirements had been met. Customs had asked the court for a further hearing, the applicant had been notified of it, attended and was represented, and no prejudice resulted from the inability positively to establish receipt of the form. The detention order of 6 August 1998 was therefore not a nullity, and the challenge to the later order of 5 November 1998 failed because its necessary premise was absent.
4. The forfeiture application was validly made. Section 42(5) of the Drug Trafficking Act 1994 authorised an application by the Commissioners or a constable. Section 63 defined constable to include a person commissioned by the Commissioners under section 6(3) of the Customs and Excise Management Act 1979. Mr Wales held such a commission. Section 8(1) of that Act also permitted an act authorised to be done by the Commissioners to be done by an officer or other person acting under their authority.
5. The court rejected the argument that the 1994 Act should be read as preserving an earlier legislative position. Section 63 applied throughout the Act, including Part 2, and the relevant provisions were clear. The application was not an abuse or made in bad faith merely because Customs had been undecided on the previous day. Customs were entitled to change their minds and take legitimate steps to preserve the possibility of forfeiture where procedural difficulties affected the intended detention application.
6. The magistrates had discretion over costs. The court’s failure to give due notice did not require Customs to pay the applicant’s costs. Appeals dismissed with costs.

• Court of Appeal (Civil Division) dismissed the appeals with costs.
• Queen’s Bench Division, Owen J, dismissed the applications for judicial review on 29 June 1999: [1999] EWHC Admin 613.